PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION

The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation.

KEY POINTS

The burden was on the claimant in an negligent misstatement case to prove causation.

Although there had been some negligent misstatements made by the defendant there was some support for the concerns that the defendant expressed.

The claimant had adduced no evidence that established that it was the negligent misstatements which led to the claimants’s losses.

THE CASE

The claimant was bringing about an action for damages for negligent misstatement. the claimant and defendant are ophthalmic surgeons. It was alleged that certain statements the defendant made over the telephone about the claimant’s history of patient complaints and complications led to the withdrawal of a job offer.

THE EVIDENCE

Having determined what was reasonably conveyed to Mr Watson by the words used by the Defendant in the context in which they were spoken, the Judge proceeded to ask and answer three questions:-

i) Had what the Defendant said or indicated amounted to a misstatement?ii) If so, was the Defendant negligent in making that misstatement?

iii) Did any negligent misstatement result in the offer being withdrawn?

The Judge’s examination of the first two questions was severely hampered by three features of the trial. First, NL&G [the hospital trust] did not give the Defendant permission to access patient records for the purpose of defending himself in these proceedings. He had therefore to attempt to recollect the names of patients who had made complaints and/or suffered complications and additionally to obtain their consent to his having access to their clinical records. Second, although permission was given to both parties to adduce expert evidence on the clinical issues, neither party availed himself of that opportunity. Worse, the parties compounded that failure by inviting witnesses of fact, who appeared to be appropriately qualified, to give opinion evidence in the witness box, which was not foreshadowed in statements served before trial and which suffered from the additional defect of being given by witnesses who were not independent. In such circumstances the burden of proof not unnaturally assumed some significance. Thirdly, the parties made no attempt to disguise their obvious dislike of the other. The Judge recorded that she had disregarded the obvious animosity when reaching her conclusions, but at the same time indicated, not unnaturally, that it had not assisted her. It is perhaps indicative of these difficulties that the trial, which was concerned only with liability, lasted thirteen days.

THE TRIAL JUDGE’S FINDINGS

The trial judge found that there had been negligent misstatements by the defendant, and that these had been made negligently. The defendant had said there were around six cases of patient complications. There was only evidence of three cases of complications.

“98. . . . Whilst my findings are such that Mr Ali can only rely on 3 cases of patient complications in support of what he said, I have no evidence at all as to whether that is a complication rate higher than would be expected. This was simply not addressed in evidence, the Claimant’s case being that all the statements made and/or impressions given by the Defendant were misstatements in all respects. The Claimant sought to prove that there were no complications such that it would inevitably follow that his complication rate was not higher than would be expected. In one sense, the fact of the 3 cases of complications would justify the statement that the complication rate was higher than would be expected. That follows from my finding that it was a necessary inference, and the impression given to Mr Watson, that the complications were necessarily something other than those which necessarily arise in surgical procedures and which would not be worthy of, or require, any comment from Mr Ali. Indeed Mr Watson effectively made that point in his evidence when he said “The impression I was given by . . . Mr Ali was that the rate was higher than would be expected, as you said earlier you do not expect a complication in surgery” (Transcript 28 January 2014, 1000). In any event the Claimant has produced no evidence to address the possibility of my making findings other than that all the statements/indications given by the Defendant were misstatements.”

100. The Claimant cannot satisfy me on the balance of probabilities that any negligent statement resulted in the offer being withdrawn. There is no evidence from which I can properly distinguish the effect on Mr Watson’s decision of the various different aspects of the statement made and which I have found were relevant to the decision to withdraw the Locum Position offer. Most significantly the Claimant has failed to prove on the balance of probabilities that the impression given to Mr Watson that the complication rate was higher than would be expected was a misstatement. This issue was plainly at the heart of Mr Watson’s decision to withdraw the Locum Position offer. It follows that notwithstanding my findings that the Defendant made negligent misstatements in various respects, the Claimant fails on causation and the claim will be dismissed.”

THE DECISION IN THE COURT OF APPEAL

The claimant argued that the defendant’s misstatement that there had been about half a dozen complications meant was the reason the job offer was withdrawn. Alternatively that the burden of proof shifted to the defendant to show that the rate of complications was higher than expected.

The Court of Appeal, robustly, upheld the trial judge’s conclusions.

It follows that I reject also the argument that the Judge wrongly approached the question upon whom lay the evidential burden. The burden of proving that it was incorrect to say that the rate of complications was higher than would be expected was and remained throughout on the Claimant. By showing that there were three such cases in four months rather than about six the Claimant did not discharge that burden.

The Judge’s conclusion was that there were two negligent misstatements by the Defendant, first that there had been about six patients with complications and second that two of those cases had gone or were expected to go to litigation. However the Judge concluded that the Claimant could not show that but for the making of those statements the job offer would not have been withdrawn. That is because the critical factor is that Mr Watson was given the impression that the complication rate was higher than would be expected, and that is why he withdrew the job offer. The Claimant did not demonstrate that that was a wrong impression. The Judge’s approach was in my view impeccable.